When Expert Strategy Goes Wrong, the Case Pays the Price

In complex litigation, expert witnesses are often treated as a box to check. Find the right credentials, retain an expert, move forward.

But that approach misses something critical: not all expert witnesses serve the same purpose, and using the wrong expert at the wrong time can quietly undermine an entire case.

From bankruptcy disputes to regulatory and commercial litigation, expert strategy plays a central role in shaping outcomes. Yet one of the most common and costly mistakes legal teams make is failing to distinguish between consulting experts and testifying experts, and understanding how each should be used strategically.

The Role of Expert Witnesses in Litigation Strategy

Expert witnesses in litigation strategy influence far more than testimony. They shape early case theory, damages analyses, valuation assumptions, and strategic decision-making long before a matter reaches trial.

When expert engagement is treated as a single decision rather than a strategic process, legal teams can unintentionally limit flexibility and expose sensitive legal thinking too early.

Consulting Experts vs. Testifying Experts: Key Differences That Matter

Consulting experts support litigation strategy behind the scenes. They help attorneys analyze data, test assumptions, and refine arguments while typically remaining protected by privilege.

Testifying experts, by contrast, must withstand discovery, deposition, and cross-examination. Their opinions become part of the record and are scrutinized by opposing counsel, judges, and regulators.

Blurring these roles can:

• Expose legal theory earlier than intended 
• Weaken privilege and confidentiality protections 
• Create credibility challenges for expert testimony

Once an expert is positioned incorrectly, reversing course is often difficult.

Protecting Privilege and Confidentiality in Expert Engagements

Privilege is one of the most misunderstood aspects of expert strategy. The way experts are retained, designated, and used can determine whether their work remains protected or becomes discoverable.

Missteps in this area often do not surface until late in the case, when options are limited, and the cost of correction – as well as the stakes – are high.

How Expert Sequencing Can Reduce Litigation Risk and Cost

A more effective approach views expert engagement as a sequence rather than a single event. Using consulting experts early and transitioning thoughtfully to testifying experts can:

• Preserve privilege during early strategy development 
• Strengthen expert opinions before disclosure 
• Reduce duplication of effort and unnecessary expense

This sequencing can meaningfully improve both efficiency and outcomes.

A Smarter Approach to Expert Witness Strategy

Understanding how and when to use different types of experts gives legal teams more control over case narrative, risk exposure, and cost management.

Our latest white paper explores this approach in depth, with practical guidance for deploying consulting and testifying experts in a way that strengthens—not compromises—your case.

Read the full white paper: How Strategic Use of Experts Can Make or Break Your Case